The Supreme Court’s decision today blocking, at least for now, the Trump Administration’s termination of the DACA program is based on violations of the Administrative Procedure Act (APA) by the Department of Homeland Security (DHS) in ending it. Many of us recall that in September 2017 disgraced Attorney General Jeff Sessions announced that the DACA program would be ended. He, of course, had no jurisdiction to terminate DACA, but soon thereafter the Acting Secretary of Homeland Security Elaine Duke formally announced its end. Her rescission order was based entirely on the reasoning offered by Jeff Sessions.
Shortly after her decision to end DACA, Duke was replaced by new DHS Secretary Kirstjen M. Nielsen. The new secretary offered new rationales for why DACA had been terminated. In its brief before the Court, the Trump Administration argued that the rationales offered by Secretary Nielsen nine months after the order terminating was issued be accepted as the reasons for the termination. Acting Secretary Duke had clearly said that she terminated the program because the Attorney General considered it illegal. Nielsen offered different rationales for the termination. Chief Justice Roberts warned that this might be an “impermissible ‘post hoc rationalization.’” In other words, a story cooked up after the fact. You can feel the puzzlement of Roberts when he writes that “The policy reasons that Secretary Nielsen cites as a third basis for the rescission are also nowhere to be found in the Duke Memorandum.”
Chief Justice Roberts says that the reasons given for terminating the program must be the real reasons, and not just reasons offered for the purpose of litigation. The Supreme Court said that the values that the Administrative Procedures Act was designed to uphold such as agency accountability and transparency, would be “markedly undermined were we to allow DHS to rely on reasons offered nine months after Duke announced the rescission.”
The Chief Justice also faulted the Acting DHS Secretary for not adequately addressing the “reliance” hundreds of thousands of immigrants had on the DACA program. These young people had substantially changed their lives in reliance on the existence of the program. Some had joined the military and others had started college in the United States, for example. While such reliance does not insure that the program will continue forever, the fact that their reliance was not even considered in the rescission is itself a violation of the Administrative Procedures Act.
For the reasons described above, the termination of DACA was ruled to be arbitrary and capricious. The case will now go back to the District Courts for further consideration.